Karnataka High Court
Somashekhar S/O. Pawadeppa ... vs Channappa S/O. Pawadeppa Guddad on 24 September, 2021
Author: P.B.Bajanthri And Kamal
IN THE HIGH COURT OF KARNATAKA
R
DHARWAD BENCH
DATED THIS THE 24 T H DAY OF SEPTEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE P.B.BAJANTHRI
AND
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
R.F.A.No.100032/2014 (PAR/POS)
Between:
Shri Somashekhar S/o.Pawadeappa Guddad,
Age: 60 years, Occ: Retired,
Now R/at.Mrutyunjaya Nagar,
Banagar Street, Dharwad-580 006.
... Appellant
(By Shri K.L.Patil, Advocate)
And:
Channappa S/o.Pawadeppa Guddad,
Since deceased, Rep. by his L.Rs,
1(a) Smt.Dakshayani W/o.Channappa Guddad,
Age: 62 years, Occ: Housewife,
R/o. Mrutyunjaya Nagar,
Banagar Street, Dharwad-580 006.
1(b) Sri.Mallikarjun S/o.Channappa Guddad,
Age: 37 years, Occ: Business,
R/o.Mrutyunjaya Nagar,
Banagar Street, Dharwad-580 006.
:2:
1(c) Smt.Danamma W/o.Arun Patil,
Age: 39 years, Occ: Housewife,
R/o.Mrutyunjaya Nagar,
Banagar Street, Dharwad-580 006.
2. Sri.Shivappa S/o.Pawadeppa Guddad,
Age: 62 years, Occ: Business,
r/o.Mrutyunjaya Nagar,
Banagar Street, Dharwad-580 006.
3. Sri.Basavaraj S/o.Pawadeppa Guddad,
Age: 55 years, Occ: Business,
R/o.Mrutyunjaya Nagar, Banagar Street,
Dharwad-580 006.
4. Smt.Mahananda W/o.Shripad Bagi,
Age: 65 years, Occ: House wife,
R/o.No.24, Veenita Nilaya, 9 t h Cross,
II Main, Sadashivanagar, Belgaum-590 001.
5. Sri.Basavaraj S/o.Shankaralingappa Gadag,
Age: 60 years, Occ: Business,
R/o.APMC Market Yard, Ramadurga-591 123,
Dist: Belgaum.
... Respondents
(Shri R.H. Angadi, Advocate for R1(a to c), R2 & R3;
Respondent No.4 & 5 are served)
This RFA is filed under Section 96 of CPC against
the Judgment and Decree dtd.30.11.2013 passed in
O.S.No.248/2006 on the file of the Principal Senior Civil
Judge and CJM, Dharwad, dismissing the suit filed for
partition, separate possession and mesne profits.
This RFA being heard and reserved for judgment,
coming on for pronouncement of judgment, this day,
M.G.S. Kamal, J., delivered the following:
:3:
JUDGMENT
1. This regular first appeal under Section 96 of CPC
is filed by the appellant/plaintiff aggrieved by the
Judgment and Decree dated 30.11.2013 passed in
O.S.No.248/2006 on the file of Principal Senior Civil
Judge and CJM, Dharwad, dismissing the suit of the
appellant/plaintiff for partition and separate possession
and mesne profits.
2. The properties subject matter of the above suit
are:
(A-1) Partnership business, its assets and
properties named as P.C.Guddad and Sons,
Mrityunj aya Nagar, APMC Y ard, Dharwad, which
is a Commission Agency business in food grains.
(A-2) Property bearing Sy.No.65/41, Area
measuring 3 guntas 113/9 Annas, in which a RCC
building of above mentioned business premises is
situated.
(B-1) Residential area bearing Survey
No.593/1A, 593/1B, 593/1C and 593/1D, Area
measuring 10 gunta 30 Annas, in which an old
residential house measuring approximately 4500
sq. ft., with teak wood and other valuable
building materials was situated. At present, it
has been demolished and reconstruction is in
progress in CTS No.593/1B and 593/1C at
Mrutyunjaya Nagar, Dharwad by defendant Nos.1
and 3.
(B-2) Property bearing CTS No.93/32/HYG
in Hosayellapur area measuring 725.64 sq.
mtrs., along with open site and RCC building
constructed thereon at Mahishi Road, Dharwad.
(C-1) 2 gunta open site in APMC Yard,
Dharwad.
(C-2) Site and semi constructed building
situated within the limits of Amargol village of
APMC Yard, Hubli.
(C-3) Open Site measuring about 2 Guntas
situated in Manjunath Co-operative Housing
Society, behind Ozone Hotel, Navalur, in the
name of Basavaraj Guddad.
(C-4) Open site measuring about 2 guntas
situated in Concorde Co-operative Housing
Society, Sutagatti, Taluk: Hubli, in the name of
Mallikarjun Channappa Guddad.
(D-1) Cash invested in Mrityunj aya Finance
Bank, APMC Yard, Dharwad, in the name of
Channappa Guddad from the firm.
(D-2) Gold ornaments approximately
weighing about 200 tollas
(D-3) Household furniture and articles.
(E-1) Motor Vehicles:
Sl.No. Name Reg. No.
1 M-80 CN-269
2 Motorcycle CRU-1069
3 TVS Scooty KA-25/S-80
4 Bajaj Scooter KA-25/E-5694
5 LML Scooter KA-25/L-562
6 LML Scooter KA-25/K-9988
(F) Share in yearly profits from the firm as on
this day.
3. For the purpose of convenience, the parties would
be referred to as per their ranking before the trial
Court.
4. THE CASE OF THE PLAINTIFF IS:
(a) That the Original Popositus one Pawadeppa
Guddad, the father of plaintiff and defendants was
carrying on the business of commission agency in APMC
Yard, Dharwad. The said business was in the name of
family partnership firm and was a joint family business
of the plaintiff and the defendants. That all the suit
schedule properties are the joint family properties of
the plaintiff and defendants. The income received from
the commission agency business was utilized by
Pawadeppa Guddad and the defendants for acquisition
of the suit properties and there is no other occupation
or source of income for any of the defendants to
acquire the properties. Hence, all the suit properties
are joint family properties in which plaintiff and
defendants are entitled to equal 1/5 t h share therein.
(b) That the plaintiff was also a member of the
partnership business. That plaintiff being an
Engineering Graduate was employed in KPCL during the
year 1978. That on account of his service, he had to
reside outside his joint family along with his wife and
children. In view of the joining the service, original
propositus-Pawadeppa Guddad removed the name of
the plaintiff from the family partnership deed for the
purpose of convenience.
(c) That the original propositus out of love and
affection had given a portion of open site bearing CTS
No.593/2 at Mrutyunjaya Nagar to the plainitff by way
of registered gift deed during the year 1986. That the
plaintiff has constructed a house on the said portion of
the property by availing loans and from his savings
made out of his salary from service. That the original
propositus passed away leaving behind the plaintiff and
defendants to succeed to the suit schedule properties.
That upon the death of the original propositus, the
family business and the properties were maintained and
managed by Defendant Nos.1 to 3. They were
managing and maintaining the books of accounts,
income and expenditure, profit and other incidental
activities pertaining to the business and the family
properties. However, they have not given any account
or the details with respect to business turnover or the
profit derived therefrom.
(d) That the Income Tax returns/assessment from the
year 1978-79 in respect of firm have been filed in the
name of the plaintiff even after his retirement from the
firm.
(e) During the month of January 2004, Defendants 1
and 3 had insisted the plaintiff to sign certain
documents on the pretext of the same being required
for the purpose of demolition and construction of new
house on the assurance that they will help the son of
the plaintiff in pursuing his post graduation studies.
Reposing faith and confidence in defendants, plaintiff
had signed the said documents. But, however,
unfortunately misusing the same, defendants are
making adverse claim against the interest of the
plaintiff by asserting that the partition had been
effected and that the plaintiff did not have any share in
the properties. That the defendants are therefore,
denying to partition and allot the legitimate share of
the plaintiff having 1/5 t h share in the joint family
properties. That the plaintiff has not received even a
single paisa from the family business. All requests and
pleadings of the plaintiff for partition and separate
possession of the suit schedule properties yielded no
result. Hence, he is constrained to file the suit for
partition and separate possession and mesne profits.
5. CASE OF THE DEFENDANTS:
(a) On service of summons, defendants appeared
through their counsel and defendants 1 to 3 filed the
joint written statement admitting the relationship that
the plaintiff and defendants are the sons of late
Pawadeppa Guddad. However, denied all other
averments made in the plaint. It is contended that
propositus Pawadeppa Guddad and his genitive father
originally belong to Gadag village in Dharwad Taluk.
The deceased Pawadeppa Guddad came to Dharwad as
he was given in adoption to one Shri Channaveerappa
Guddad and his wife Smt.Shivalingavva Guddad. By
virtue of adoption, Pawadeppa Guddad became the
adoptive son of Shri Channaveerappa Guddad and Smt.
Shivalingavva Guddad.
(b) That the property described in Para No.2(B1) of
the plaint, totally measuring 13 guntas 61 square yards
originally belonged to one Shri Mohammadgous Saheb,
S/o.Dadasaheb Kanti of Dharwad. That aforesaid
Smt.Shivalingavva Guddad had purchased the said
property from the aforesaid Sri.M.D.Kanti in terms of
registered deed of sale dated 08.09.1909. After demise
of Smt.Shivalingavva Guddad, Pawadeppa Guddad who
was their adoptive son succeeded to the said property
and the said property became separate property of
Pawadeppa Guddad. The said property was assigned
with new CTS No.593. The said Pawadeppa Guddad sold
a portion of said land measuring about 3 guntas 39
square yards touching western end consisting of a zinc
sheet chappar through registered deed of sale dated
02.04.1938 to one Gangappa, son of Sannabailappa
Navalur of Dharwad. Subsequently, said Pavadeppa
Guddad re-purchased the said portion from said
Gangappa through registered sale deed dated
22.04.1942. Thus, their father again became the owner
of entire extent of 13 guntas 61 square yards of land in
CTS No.593 which is situated in Banagar Oni,
Haveripeth, Dharwad. Thus, this is a separate property
purchased out of independent earnings of Pavadeppa
Guddad and plaintiff had no right title and interest in
the said property.
(c) That the said Pawadeppa Guddad had gifted a
portion measuring 90 ft. x 40 ft. in terms of registered
deed of gift dated 25.03.1986 in favour of the plaintiff.
The said portion was assigned with CTS No.593/2/MN.
The remaining portion of the said land was assigned
with CTS No.591/1/MN and continued in the name of
Pawadeppa Guddad. After demise of Pawadeppa
Guddad, names of defendants and the plaintiff as legal
heirs of Pawadeppa Guddad were entered in the
revenue records.
(d) That the plaintiff and defendant No.2 gave up their
right with regard to remaining portion of CTS
No.593/1/MN. Accordingly, plaintiff and the defendant
No.2 jointly executed a relinquishment deed dated
15.03.2004 in favour of Defendants 1 and 3 which
transaction was reported to the CTS authorities and the
names of plaintiff and defendant No.2 were thus
deleted from the revenue records and the names of
Defendants 1 and 3 were entered thereon. Further, on
account of complaints and insistence by the plaintiff for
additional land, to pacify him and to avoid
inconvenience, defendants 1 and 3 agreed to give an
additional portion of 105 square yards on the northern
side, abutting the property bearing CTS No.593/2, to
the plaintiff. Accordingly, they jointly executed a
registered deed of gift on 29.11.2004. As the plaintiff
had already separated and had got constructed a house
for himself in CTS No.593/2 and the same did not have
passage for the purpose of access from the main road,
in order to help the plaintiff, defendants 1 and 3 ear-
marked around 12 feet width passage in the deed of
gift dated 29.11.2004 by way of right of easement in
favour of the plaintiff.
(e) It is further contended that the aforesaid 105
square yards portion was renumbered as CTS
No.593/1A and remaining area came to be divided in
two portions between defendant Nos.1 and 3. CTS
No.593/1B came to the share of defendant No.1 and
CTS No.593/1C came to the share of defendant No.3.
12 feet passage is numbered as 593/1D and it belong to
defendant Nos.1 and 3, However, the plaintiff is given
the right to use the passage.
(f) That the plaintiff completed B.E in Surathkal
Engineering College in about 1975-76 and thereafter,
joined service in Mysore Power Corporation presently
called KPTCL. That the plaintiff constructed residential
house in CTS No.593/2 during the year 1987-88.
Thereafter, defendant No.2-Shivappa resided in the said
house along with his wife and children as he had got
separated from his parents. Defendant No.2 vacated
the said house and shifted to his own house constructed
in CTS No.93/32, Mahishi Road, Malamaddi, Dharwad in
1996. Presently, the house of the plaintiff is occupied
by himself and his family.
(g) That portion of property bearing CTS No.593/1B is
in the name of defendant No.1. Defendant No.1, on
obtaining permission in the year 2005, had demolished
the old structure existed thereon and constructed a new
RCC house. CTS No.593/1C stands in the name of
defendant No.3-Basavaraj. Said defendant No.3 has
also on obtaining permission in the year 2005,
demolished the old structure and constructed new RCC
house. Thus, defendant No.1 and defendant No.3 have
got constructed new houses out of their own funds.
(h) That the defendant No.2 - Shivappa Guddad had
purchased open site bearing CTS No.93/32 under deed
of sale dated 02.01.1996. After obtaining sanctioned
plan, he has constructed a new house thereon in the
year 1997 and he has been residing in the said house
with his family and the said property was purchased by
the defendant No.2 out of his own funds.
(i) That M/s.P.C.Guddad and sons is not joint family
business at all as claimed by the plaintiff. Deceased
Pavadappa Guddad had engaged in business of jaggery
and sweet oil on a very small scale in a rented premises
which he closed in about 1950-51 as he suffered losses.
At that time, Defendant No.1 was about 7 years and
plaintiff and other defendants were not born. Deceased
Pavadeppa Guddad due to financial constraint could not
provide education to defendant No.1. In or about 1959-
60, deceased Pavadeppa Guddad had started business
of commission agency on a small scale in a rented
premises and was maintaining his family. In the year
1961, Pavadeppa Guddad purchased open site from
Dharwad Municipality bearing CTS No.65/41 which is
shown at Para 2(A2) of the plaint. That the defendant
No.1 joined his father in commission agency business
and assisted him and gained experience. By the year
1965-66, defendant No.1 was grown up. That
Pavadeppa Guddad had not received any property or
money from his genetive family. He did not get any
income yielding property or money from the adoptive
family except property in CTS No.593 which he got from
his adoptive mother, which consisted of an open site
with old tiled houses and the same was being used by
Pavadeppa Guddad as residence.
(j) That the father and son under the circumstances,
decided to carry on the commission agency business as
partners. Accordingly, entered into a partnership
agreement during the year 1966 and started the
business in the name of M/s.P.C.Guddad and sons. It
was started in a rented premises belonging to one Sri.
Contractor of Alanavar situated in Old Dalal Market
near Legal Practice, Dharwad. Both the partners were
active partners and shared profit and loss equally.
Both partners invested the required capital equally.
The firm had maintained the accounts of the
partnership business in the ordinary course of business.
In or about the year 1968, both partners constructed a
shop and godown in the open CTS No.65/41 situated in
APMC yard. Pavadeppa Guddad contributed CTS
No.65/41 into the stock of the firm asset and shop and
godown were got constructed by investing the
partnership money belonging to Pavadeppa Guddad and
another partner his son Channappa. Shop and godown
got constructed out of the partnership firm and the
same became property of the firm consisting of
Pavadeppa Guddad and his son Channappa Guddad. It
is therefore submitted that CTS No.65/41 and the firm
business M/s.P.C. Guddad and sons are not joint family
properties as alleged by the plaintiff. Both the partners
shifted the firm business from the rented premises in
old Dalal Market to the newly constructed shop and
godown in CTS No.65/41 in the year 1968. Until
1968-69, Pavadeppa Guddad and his son
Channabasappa Guddad were only two partners and the
firm was an unregistered partnership firm. By the year
1968-69, plaintiff and defendant Nos.2 and 3 were born
and business of the firm was slowly improving. As
such, the two partners decided to get the firm
registered under the provisions of Indian Partnership
Act and admitted plaintiff and defendant Nos.2 and 3 as
beneficiaries of the firm. On 19.07.1969, the firm was
registered under the name of M/s.P.C.Guddad and sons
showing Pavadeppa Guddad and Channabasappa
Guddad as partners with plaintiff and defendant Nos.2
to 3 as minor beneficiaries.
(k) That in the year 1967, defendant No.1 got married
and started residing separately in a portion of old
house bearing CTS No.593. That CTS No.65/41
consisting of shop and godown and a partnership firm
business belonged to the two partners, Pavadeppa
Guddad and defendant No.1-Channabasappa Guddad.
Plaintiff and defendant Nos.2 and 3 though were
nominally admitted as minor beneficiaries were not
given any share in the shop or godown.
(l) That after the plaintiff joined the service, to avoid
technical difficulty, he retired from the firm on
31.10.1978 and was witnessed by a written deed dated
03.02.1979. In view of the change in the constitution
of the firm, the accounts came to be settled. The
plaintiff retired and the firm came to be reconstituted
with effect from 01.11.1978 with four partners namely;
i) Pavadeppa Guddad
ii) Channappa Guddad
iii) Shivappa Guddad
iv) Basavaraj Guddad
with equal contribution and profit and loss sharing at
1/4 t h each.
(m) That the reconstituted firm continued till the death
of Pavadeppa Guddad on 04.09.1989. Thereafter, the
firm was again reconstituted with the surviving partner
on 25.10.1989 between defendant Nos.1 to 3 with 1/3 r d
share each. The change in the constitution of the firm
has been intimated to the Registrar of Firms. Thus,
M/s.P.C.Guddad and sons, a partnership carrying on
commission agency business in CTS No.65/41 is not a
joint family business. It is the business in which
defendant Nos.1 to 3 are the partners and the plaintiff
has no share or interest in the business.
(n) That in Para 2(C1), the plaintiff has shown open
site measuring 2 guntas situated in APMC Yard,
Dharwad, claiming it to be joint family property. That
the said property bearing Plot No.84, measuring east to
west 30 mtrs, north to south ` mtrs. The said plot
originally belonged to agricultural produce market
committee, Dharwad and was purchased by defendant
No.2-Shivappa Guddad as partner of the firm on lease-
cum-sale agreement on 02.02.1998. This property is
purchased by the firm consisting of defendant Nos.1, 2
and 3 as its partners and the same is thus not joint
family property.
(o) In Para 2(C2), the plaintiff has referred to site and
semi-constructed building at Amargol, APMC, Hubli,
claiming the same to be joint family property. The said
property bears C-3, Plot No.17, Amargol APMC. The said
property is also purchased by defendant No.2 as
partner of the firm in terms of registered lease-cum-
sale agreement dated 06.11.1998. The said property
belongs to Defendant Nos.1 to 3. After the purchase,
defendant Nos.1 to 3 undertook construction, which is
in the incomplete stage. The said property is not joint
family property.
(p) In Para 2(C3), plaintiff refers to open site
measuring 2 guntas, standing in the name of Defendant
No.3-Basavaraj Guddad. The said property bears plot
No.32 of Block No.168 of Navalur village situated
behind Ozone Hotel. The said property originally
belonged to Manjunath Co-operative Housing Society,
Dharwad and was purchased by Defendant No.3 under
registered sale deed dated 20.05.1994. The sale
consideration was paid by defendant No.3 himself and
the property belongs to Defendant No.3 and is not a
joint family property. In Para 2(C), plaintiff has
referred to an open site measuring 2 guntas standing in
the name of Mallikarjuna Guddad. This property bears
plot No.70 of Block No.52+59A situated within the
limits of Sutagatti village, Hubli Taluk. The said
property was purchased by Mallikarjun, Channabasappa
Guddad from Concorde Developers under a registered
deed of sale dated 18.02.2005, but the sale
consideration was paid by defendant No.1 drawing
necessary amount from the firm in his account. The
said property is also not joint family property.
(q) In Para 2(D1), the plaintiff had claimed cash
investment in Mruthyunjaya Finance, Dharwad in the
name of Defendant No.1. It is submitted that during
the year 1987, defendant No.1 invested Rs.12,500/- as
his capital in the said finance institution. As the said
finance institution suffered loss, the investment so
made has become dead investment. At any rate, the
said investment is by defendant No.1 and is not a joint
family investment.
(r) At Para 2(D2), plaintiff has referred to gold
ornaments of about 200 tolas claiming the same to be
joint family property. Plaintiff and defendants 1 to 3
are separated and have got separate residence. There
are not gold ornaments as alleged in the said
paragraph.
(s) At Para 2(D3), plaintiff has claimed furnitures and
articles. There are no joint family furnitures and
articles available for partition.
(t) In Para 2(E1), plaintiff has referred to motor
vehicles at Sl.Nos.1 to 6. The said motor vehicles are
not joint family properties. Therefore, not liable for
partition. All six vehicles which are standing in the
names of defendant Nos.1, 2 and 3 have become old
and worn out vehicles and have become scrap.
Thus, there are no joint family properties available for
partition and sought for dismissal of the suit.
ISSUES FRAMED BY THE TRIAL COURT:
6. The Trial Court based on the aforesaid pleadings,
framed the following issues for consideration:
1. Whether the plaintiff proves that propositus
Pawade ppa was running business for Joint
Family of Plaintiff and Defendants?
2. Whether the plaintiff proves that the family
of the plaintiff and defendants acquired
properties out of nucleus of joint family
business?
3. Whether the defendants prove that
Pawade ppa acquired properties through his
adoptive mother?
4. Whether the defendants prove that the
defendant (it ought to be plaintiff) was
given site measuring 90 x 40 by the gift
deed e xecuted by Pawade ppa?
5. Whether defendants No.1 and 2 prove that
property bearing CTS No.593/1B and CTS
No.93/32 are their self-acquired
properties?
6. To what decree or order?
EVIDENCE AND CONCLUSION BY THE TRIAL COURT:
7. The trial Court recorded the evidence. The
appellant/plaintiff examined himself as PW1 and
exhibited 103 documents marked as Exs.P1 to P103.
The defendant No.2 examined himself as DW1 and
exhibited 26 documents marked as Exs.D1 to D26. The
trial Court answered issue Nos.1 and 2 in the Negative
and issue Nos.3, 4 and 5 in Affirmative and
consequently dismissed the suit of the plaintiff by the
impugned judgment and decree dated 30.11.2013.
Being aggrieved by the same, the appellant/plaintiff is
before this Court.
SUBMISSION OF THE LEARNED COUNSEL FOR THE
PLAINTIFF:
8. Learned counsel for the plaintiff reiterating the
grounds urged in the appeal submitted:
(a) That the trial Court erred in not appreciating the
material evidence produced to justify the contention
that the suit properties are the joint family properties
of the plaintiff and defendants in joint possession and
ownership thereof.
(b) That the trial Court erred in not appreciating that
the original propositus-Pawadeppa Guddad had started
family business under the name and style "M/s.P.C.
Guddad & Sons" and after his demise, defendant No.1
managed the joint family business and that it is out of
the said family business, the suit schedule properties
were acquired.
(c) That after completion of his studies, the plaintiff
had joined KPTCL as Engineer and had formally retired
from the Partnership Firm. That even after his
retirement, the income tax returns of the Firm as
submitted to the authorities disclosed the name of the
plaintiff as partner; that except the income from the
joint family business set up by the original propositus,
there is no other source of income even as admitted by
DW1, which the trial Court has not taken note of.
(d) That the trial Court erred in not taking into
consideration the fact that there is no partition during
or after the lifetime of the father of the plaintiff and
defendants.
(e) That the plaintiff was residing outside from the
joint family since 1978 till his retirement on
30.04.2013, on account of his service.
(f) That the trial Court erred in not appreciating that
admittedly there is no independent source of income to
the defendants except the source from the joint family
to acquire other properties. The trial Court failed to
consider Ex.P11, the registered partition deed between
defendants, to which the plaintiff was not a party and
that the defendants behind the back of plaintiff created
such documents. That even as per Ex.P11, the
defendants have clearly admitted that the suit schedule
properties are the joint family properties acquired from
the nucleus of the joint family business. He further
relied upon the following decisions of the Hon'ble Apex
Court in the case of:
(i) MALLESAPPA BANDEPPA DESAI VS.
DESAI MALLAPA ALIAS MALLESAPPA
reported in AIR 1961 SC 1268,
(ii) APPASAHEB PEERAPPA CHANDGADE
VS. DEVENDRA PEERAPPA CHANDGADE
& ORS reported in AIR 2007 SC 218
(iii) MADANLAL (DEAD) BY LRS. AND
OTHERS VS. YOGA BAI (DEAD) BY LRS.
reported in AIR 2003 SC 1880.
SUBMISSION OF THE LEARNED COUNSEL FOR THE
DEFENDANTS
9. Learned counsel for the defendants justifying the
impugned judgment and decree passed by the trial
Court submitted:
(a) That the appellant has not made out any grounds
warranting interference by this Court. That the
plaintiff had miserably failed to establish and
prove the fact that the suit schedule properties
are the joint family properties.
(b) That on and from the year 1978-79, the plaintiff
retired from the partnership business. That the
plaintiff had not been participating in the
partnership business. That upon the demise of the
father of the plaintiff and defendants, his share
has been given to the mother of the plaintiff and
defendants. As such, the plaintiff has no right,
title and interest in the aforesaid business.
(c) That the plaintiff had been given portion of the
property in CTS No.593 even during the lifetime of
the father of the plaintiff and defendants, in which
portion, the plaintiff has constructed a residential
house and residing there with his family. The
plaintiff having executed the relinquishment deed
in favour of defendant No.2 along with defendant
Nos.1 and 3 in respect of remaining portion in CTS
No.593, he cannot claim any share therein
(d) That all other suit schedule properties were
acquired from the independent sources of the
defendants. That there was no joint family nucleus
as claimed and contented on behalf of the
plaintiff, he relied upon the judgment of the
Co-ordinate Bench of this Court in the case of
DANDAPPA RUDRAPPA HAMPALI AND OTHERS
VS. RENUKAPPA ALIAS REVANAPPA AND
OTHERS reported in AIR 1993 KAR 148.
Hence, sought for dismissal of the appeal.
10. Heard the learned Counsels for the respective
parties.
11. On consideration of the rival submissions made by
the learned counsel for the parties, the questions that
would arise for our consideration are as under:
"1. Whether the judgment and decree passed
by the trial Court in dismissing the suit of
the plaintiff is sustainable?
2. Whether the appellant/plaintiff is entitled
for share in the suit schedule properties?"
12. ADMITTED FACTS WHICH EXISTED DURING
THE LIFE TIME OF PAWADEPPA GUDDAD:
(a) Regarding partnership business of M/s.P.C.
Guddad and Sons and property bearing CTS
No.65/41 [suit item Nos.(A-1) and (A-2)
properties]:
Admittedly the deceased Pawadeppa Guddad was
originally carrying the business of jagarry and sweet oil
and thereafter he started business of commission
agency. In or about 1961 he had purchased the
property bearing CTS No.65/41 from the Dharwad
Municipality, whereupon he constructed a shop and a
godown and carried on the business thereon. Thus,
there is no dispute that initially the business of jagary
and sweet oil and thereafter the business of
commission agency was established and carried on by
late Pawadeppa Guddad and acquired the aforesaid
property and used it for the business purpose. That the
defendants and plaintiff joined the business of
Pawadeppa Guddad and the firm came to be known as
M/s. P.C. Guddad and sons.
(b) Regarding property bearing CTS No.593 [suit item
Nos. (B-1) property]
It is not in dispute that Pawadeppa Guddad was given
in adoption to one Shri Channaveerappa Guddad and
his wife Smt.Shivalingavva Guddad of Dharwad. That
the property bearing CTS No.593 measuring 13 gunta
61 square yards situated at Banagar Oni, Haveripeth,
Dharwad was the absolute property of
Smt.Shivalingavva Guddad, the adoptive mother of the
said Pawadeppa Guddad. That upon her demise, the
said Pawadeppa Guddad succeeded to the said
properties, which became his separate property. That
the said Pawadeppa Guddad and his family were living
in the house existed thereon. That the said deceased
Pawadeppa Guddad had sold certain portion measuring
the 3 guntas 39 square yards out of the said property
in terms of sale deed dated 02.04.1938 in favour of one
Gangappa S/o.Sannabailappa Navalur of Dharwad,
which he repurchased in terms of sale deed dated
22.04.1942. Thereby once again he became the
absolute owner to the entire extent of land in CTS
No.593 measuring 13 guntas 61 square yards. It is also
not in dispute that out of the aforesaid 13 guntas 61
square yards, the said Pawadeppa Guddad during his
lifetime had given a portion measuring 90' feet X 40'
feet to the plaintiff in terms of the deed of gift dated
25.03.1986, which portion was numbered as CTS
No.593/2/MN and the remaining portion was assigned
the number as CTS No.593/1/MN which continued to be
in the name of Pawadeppa Guddad.
13. ADMITTED FACTS SUBSEQUENT TO DEMISE OF
PAWADEPPA GUDDAD:
(a) As regards property in CTS No.593 (Suit item
No.(B-1) property]
That after the demise of the said Pawadeppa Guddad in
the year 1989, the names of the defendants and
plaintiff were mutated in the revenue records in resepct
of CTS No.593. That the defendant No.2 and plaintiff
had executed and registered relinquishment deed dated
15.03.2004 in terms of which, they relinquished their
right, title and interest in respect of the portion of land
in CTS No.593/1/MN in favour of defendant Nos.1 and
3. Pursuant to which, the name of plaintiff and
defendant No.2 had been deleted and only the names of
different Nos.1 and 3 were continued. It is also
admitted that subsequently defendant Nos.1 and 3
conveyed an extent of 105 square yards on the
Northern side abutting CTS No.593/2 (which portion
was gifted to the plaintiff by late Pawadeppa Guddad)
to the plaintiff by jointly executing the registered deed
of gift dated 29.11.2004, the plaintiff thus has put up
construction on the portion of the land conveyed to him
by his father and two brothers as above and has been
in exclusive possession of the same.
(b) As regards, the properties namely:
(i) 2 gunta open site in APMC Yard,
Dharwad (C-1); it is stated that this
property was purchased by defendant
No.2, as partner of M/s. P.C. Guddad
and sons on 20.11.1997 as per Ex.D19.
(ii) Site and partially constructed building
situated in the limits of Amargol village
of APMC Yard, Hubli (C-2); it is stated
that this property was purchased by
defendant No.2, as partner of M/s.P.C.
Guddad and sons on 06.11.1998 as per
Ex.D20.
(iii) Open site measuring 2 guntas situated
in Manjunath Co-operative Housing,
behind Ozone Hotel Navalur (C-3); it is
stated that this property was purchased
by defendant No.3, as partner of M/s.
P.C. Guddad and sons on 20.05.1994 as
per Ex.D21; and
(iv) open site measuring about 2 guntas
situated in Concorde Co-operative
Housing Society, Sutagatti Taluk, Hubli
(C-4), it is stated that this property was
purchased on 18.02.2005 in the name of
Mallikarjuna Channappa Guddad S/o.
defendant No.1 as per Ex.D22.
In the back drop of these admitted facts rival
contentions of the parties needs to be appreciated. It is
to be noted that though there is no much dispute
regarding setting up of business and acquisition of
property by Pawadeppa Guddad, there is variation in
the versions of the plaintiff and defendants in narrating
the facts.
14. According to the plaintiff the property in CTS
No.65/41 was purchased by late Pawadeppa Guddad
from and out of the income derived by conducting
family business and was used for the purpose of the
business; plaintiff and defendant Nos.1 to 3 joined the
said business, which was the only source of income.
The remaining properties were purchased by defendants
in their individual names from and out of the aforesaid
family business and as such they are joint family
properties and he is having share therein.
15. On the other hand, according to the defendants
that the late Pawadeppa Guddad had initially started
business of jaggery and sweet oil, had incurred loss and
again he started commission agent business in the
name of M/s.P.C. Guddad & Sons along with defendant
No.1. It is further contended that though the property
in CTS No.65/41 was purchased by late Pawadeppa
Guddad, he had contributed the said property as his
capital contribution to the partnership business in the
year 1968-69, which he had set up along with
defendant No.1 and there by restricting his ownership
only to half of the said properties. It is also the case of
the defendant No.1 that he had actually participated in
the partnership business being equal in entitlement too
that of his late father and defendant Nos.2 and 3 also
participated in the family partnership business, had
acquired properties independently and the said
properties cannot be construed as joint family
properties. Thus, there was no joint family nucleus as
such. That the plaintiff though had been included in the
partnership business only for the beneficial purpose.
After the completion of his graduation in the year
1978-79, he had returned to the partnership firm and
had not participated in the partnership business. As
such, there was no joint family or joint family
properties available for the partition.
16. POSITION OF LAW:
(a) The Hon'ble Apex Court in the case of
APPASAHEB PEERAPPA CHANDGADE VS. DEVENDRA
PEERAPPA CHANDGADE & ORS (Supra) at paragraph
Nos.9 and 12 has held as under:
"9. So far the legal proposition is
concerned, there is no gain saying that
whenever a suit for partition and
determination of share and possession
thereof is filed, then the initial burden is on
the plaintiff to show that the entire property
was a joint Hindu family property and after
initial discharge of the burden, it shifts on
the defendants to show that the property
claimed by them was not purchased out of
the joint family nucleus and it was purchased
independent of them. This settled proposition
emerges from various decisions of this Court
right from 1954 onwards."
Thus, it is settled law that there can be a presumption
of joint family but to establish the joint family
properties, initial burden lies on the plaintiff. If once
the plaintiff discharges the initial burden, the same
shifts upon the defendants to prove otherwise.
(b) The Division Bench of Bombay High Court in the
case of MANILAL NARSINHADAS AND OTHERS VS.
BAI SUSHILA reported in AIR 1956 BOMBAY 402, at
para 5 has held that where a family was undisputably a
joint family and both the sons used to actively help
their father in carrying on the business it must be
regarded as the joint business of the family.
(c) Similarly, the Division Bench of Madras High Court
in the case of C.SUNDARAM VS. RUKMINI AMMAL
AND OTHER reported in AIR 1975 MADRAS 83, at
paragraph Nos.9 and 11 has held as under:
"9. Though the first defendant stated at
one stage that the steel trunk business was
started with joint e xertions, that cannot
obviously be true for the reason that in the year
1920 when the business was first started he
could only be below ten years of age. Having
regard to the admitted fact that there was no
joint family nucleus to enable the father to start
the business as a joint family venture and the
business not having been started with the joint
exertions of the first defendant, we can only
proceed on the 'basis that the business in
question was started by the father with the funds
of his own. It is now well settled that when the
members of a joint family, by their joint labour,
or in their joint business acquired property, that
property, in the absence of a clear intention to
the contrary, would be owned by them as joint
family property and their male issue would
acquire a right by birth in such property. But if a
single individual acquired properties by his own
exertions without any assistance from the
ancestral property, his male issue will certainly
take no interest in it. In Sudarsanam Maistry v.
Narasimnalu Maistry. (1902) I LR 25 Mad 149, a
Bench of this court held that the property
acquired by all the members of the family by
their joint labour would, in the absence of an
indication of intention to the contrary, be taken
to be the joint family property. The same
principle was followed in Muni-sami Chetti v.
Muruthammal, (1911) ILR 34 Mad 211, as well as
in Rajagopala v. Seshayya, AIR 1935 Mad 366. In
Krishna v. Rengachari, Anantanarayanan and
Ramamurti JJ. expressed the view that if
members of a joint family who are j oint in status
carry on business and acquire property by their
joint labour and exertions without the aid of any
ancestral nucleus the presumption is that the
property so acquired by them would be joint
family property in which the son of the acquirer
would get a right by birth, unless it is proved
that the acquirers intended to own the property
as co-owners between themselves in which case
alone it will be j oint property as distinguished
from joint family property. The same view has
been taken in Santhalingam v. Meenakshi
Ammal, 1970-2 M ad LJ 85. It is in the light of
the above legal position the evidence in this case
has to be considered.
11. The learned counsel for the appellant
relies on the decision in Haridas v. Devkuvarbai,
AIR 1926 Bom 408. I n that case one Narayandas
started business in Bombay as a piece-goods
merchant without the aid of any joint family
nucleus and amassed considerable wealth. While
he was carrying on business his son Haridas was
associated with him in the business. The trial
court found that as the father advanced to old
age more burden of the business was shouldered
by the son and less by the father, and that the
father and son lived and messed jointly. On
these facts tt held that the business was the
joint family business and all the properties
acquired with the income therefrom are the joint
family properties. The High Court affirmed that
view holding that where a father and his son
acquired the property by their joint labour and
are, besides, joint in food and worship, they
must be regarded as having constituted a Hindu
joint family even though -there may not have
been any nucleus of property which has come
down from his father or grandfather, and
expressed:
"For the formation of a coparcenary in
Hindu law, such a nucleus is not absolutely
necessary, provided the persons constituting it
stand in the relation of father and son and other
relation requisite for a coparcenary system, and
these persons by living, messing and worshipping
together, and throwing all the property acquired
jointly into one common stock, manifest their
intention to deal with one another and with
outsiders as members of a coparcenary system
under the Hindu Law."
The decision in Manilal v. Bai Sushila, was
also relied on. In that case also a father was
carrying on a business of his own. His two sons
also joined the business later and the question
arose as to whether the property acquired with
the income of the said business could be treated
as joint family property. The court held that as
the father and two sons indisputably lived as
members of a joint family and both the sons
used to actively help the father in carrying on
the business started by him without any
remuneration for the work done by them, it must
be regarded as joint fam ily business. The learned
Judges in that case distinguished an earlier
decision of the Allahabad High Court in Kailashi
v. Shankar, AIR 1945 All 164, in which it was
held that if a business is started by an adult
member of the family separately, the mere fact
that his sons who are dependent on him and are
being maintained by him gave him some help in
the carrying on of the business would not
necessarily make the business cease to be his
own business and make it the joint business of
himself and his sons, but the father and the sons
may so conduct themselves that from their
conduct it may be apparent that the business of
the father had become the joint business of the
father and the sons by some arrangement
between them , with respect, we are inclined to
agree with the view expressed in AIR 1945 All
164 rather than the view of the learned Judges in
AI.R 1956 Bom 402. I t is not every help and
assistance given by the son to the father in
business without remuneration, will lead to the
presumption that the separate business of the
father has become the Joint family business. The
conduct of the father and the sons with reference
to the business should be such as would show an
intention on the part of the father to give up his
exclusive ownership of the business end to make
it the joint business of him self and his sons. It
is well established that the burden of proving
that a member of a joint Hindu family threw his
self-acquired property into the common stock
lies on the person making the assertion and this
burden can only be discharged by proof of the
fact that the owner of the property clearly
expressed his intention to abandon his separate
and exclusive right in the property in favour of
the members of the joint family and that the
intention may be expressed by words or may be
inferred from the conduct of the parties. In this
case the defendant himself has stated that the
licence for the business was issued in the name
of his father till his death and that the income-
tax and sales tax returns were submitted and
assessments made in the name of the Hindu
undivided family of himself and his son. He has
also admitted that he has joined in execution of
certain mortgages with his father for the purpose
of the business because the creditors insisted
that he should also join in the execution of the
mortgages. The income of the business also has
been utilised for the purpose of purchasing
properties in his father's name. Further, in all
the correspondence the first defendant has
signed for and on behalf of his father who is
shown as the proprietor of the business. On his
evidence and the other evidence available in the
case it is clear that the father had at no stage
till his death given up his exclusive ownership of
the business and made it a joint family business.
In this connection it will be relevant to note the
initial case put forward by the first defendant at
the stage of the probate proceedings and later in
this suit. While residing the plaintiff's claim for
partition the first defendant had set up a case of
outright Rift to him of the business by the father
even during his lifetime and that can only be on
the basis that the business was the exclusive
business of the father right through till his
death. The first defendant in his deposition has
clearly admitted that there was no gift at all.
Apart from this the properties purchased with the
income of the business were also claimed by the
first defendant as having been got by him under
the will e xecuted by his father. T hat also can
only be on the basis that the income derived
from the business with which the suit properties
bad been purchased was e xclusively of the
lather's, and that the business and the income
there from belonged exclusively to the father and
not to the joint family of himself and his father.
On the materials we are not in a position to say
that the assistance given by the first defendant
to the father who was conducting the business
during his lifetim e is such as to lead to the
inference that the father gave up his exclusive
right in the business and made it a joint family
business. We are, therefore , of the view that the
court below is right in holding that the business
was the e xclusive business of the father
Chockalinga Naicker and that the suit properties
which have adm ittedly been acquired with the
income of the business are his e xclusive
properties and that the plaintiff is entitled to a
one-fourth share in the suit properties."
(d) The Co-ordinate Bench of this Court in the case of
DANDAPPA RUDRAPPA HAMPALI AND OTHERS VS.
RENUKAPPA ALIAS REVANAPPA AND OTHERS
reported in AIR 1993 KAR 148, at paragraph Nos.16,
17 and 36 has held as under:
16. Existence of a joint family does not
lead to the inference that property held by any
member of the family is joint. In Appala-swami
v.Suryanarayanam urti, AIR 1947 PC 189 the
Privy Council held at p. 192:
"Proof of the existence of a joint family
does not lead to the presumption that property
half by any member of the family is joint, and
the burden rests upon any one asserting that any
item of property is joint to establish the fact. But
there it is established that the family possessed
some joint property which from its nature and
relative value may have formed the nucleus from
which the property in question may have been
acquired, the burden shifts to the party alleging
self acquisition to establish affirmatively that the
property was acquired without the aid of the
joint family property."
17.1 Therefore the initial burden is to
establish the e xistence of some joint family
property, capable of being the nucleus from
which new property or asset could have been
acquired; it is not sufficient to show that the
joint family possessed some assets; it is
necessary to prove that the assets of the joint
family may have formed the nucleus from which
the disputed assets may have been acquired.
Whether joint family assets could have formed
the nucleus, again, de pends upon their nature
and relative value. Existence of such joint family
property which could have formed the nucleus
for the acquisition of new assets, by itself would
not lead that the new assets acquired by any
member of the family would be joint family
property, because, such a member may not have
control or command over the joint family assets.
The idea is that the member who acquired the
new assets may have utilised the joint family
assets to acquire further assets; this is possible
only if the said member was in a position to
utilise the joint family asset to acquire further
asset or assets.
17.2 In the case of the manager of the
joint family or any other member who was in
management of the family affairs or in
possession of sufficient joint family assets, it is
likely that the joint family property or part
thereof, formed the nucleus from which he
acquired other assets and in such a case, burden
will be on him to prove that the acquisition by
him was without the aid of the joint family
property.
36. Existence of sufficient family asset so
as to form a nucleus for further acquisition is a
question of fact. Such a fact can be proved by
direct evidence or circumstantial evidence.
However, circum stantial evidence should be
clear, unequivocal and clinching, as otherwise ,
there is every danger of the self-acquisitions of a
person being lost to another who claims a share
in it, based on the past prosperity of the family.
Suit is filed nearly 48 years after the death of
the father. All these years defendants 1, 9 and
13 and the children of the 1st defendant have
been working hard, and in the process they were
able to acquire some properties. The plaintiff,
though, was nearly 50 years of age has not
contributed anything for the savings of these
defendants. He has taken shelter under a vague
plea that he was assisting his brothers in their
business; a plea, which we would presently show
cannot be acce pted. Obviously, the plaintiff
realised that with the crossing of middle-age ,
time has come for him to pre pare for his old age.
The need for security in life has pursuaded him
to look at the green pastures developed by his
brothers, who spent their entire life in hard toil
and industry, while, the plaintiff seems to have
spent a bachelor's leisurely life as a social
worker."
The Hon'ble Apex Court in the case of BHAGWAT
SHARAN (DEAD THROUGH LEGAL REPRESENTATIVES)
VS. PURU SHOTT AM AND OTHERS reported in (2020)6
SCC 387, has held as under:
"The law is well settled that the burden lies
upon the person who alleges the e xistence of the
Hindu Undivided Family (HUF) to prove the same.
It is clear that not only jointness of the family
has to be proved but burden lies upon the person
alleging existence of a joint family to prove that
the property belongs to the Joint Hindu family
unless there is material on record to show that
the property is the nucleus of the joint Hindu
family or that it was purchased through funds
coming out of this nucleus."
In the light of the above settled legal principles, when
the pleadings and evidence of the parties is seen, it
becomes clear that Pawadeppa Guddad who succeded to
the property in CTS No.593 (B-2) through his adoptive
parents used the same for residence of his family. He
was doing jaggary and sweet oil business and started
commission agency business. He sold portion of land in
CTS No.593 to one Gangappa on 02.04.1938 and
repurchased the same on 22.04.1942. He purchased
property in CTS No.65/41 (A-2) in the year 1961. He
constituted partnership firm of M/s. P.C. Guddad and
sons. All his sons became partners in 1969.
17. Even as pleaded by the defendants in their written
statement, the property bearing CTS No.65/41 (A-2)
was purchased by Pawadeppa Guddad and the same had
been contributed by the said Pawadeppa Guddad as his
capital contribution to the business of the partnership.
It is in the written statement that initially the business
was being run on rented premises in Dalal Street of
Dharwad and thereafter the business was shifted by
constructing office premises and godown on the
aforesaid property and the business was run thereon
until the demise of the said Pawadeppa Guddad and
continued thereafter. That the partnership firm
originally constituted by the said Pawadeppa Guddad
and defendant No.1, which was reconstituted by
inducting defendant Nos.2, 3 and plaintiff. That the
same came to be reconstituted again on plaintiff joining
the service after completion of his education.
18. Further, referring to the plaint schedule
properties, the defendants in written statement
paragraph Nos.31 to 34 even while contending that the
said properties were acquired after the demise of
Pawadeppa Guddad and the plaintiff had no share
therein, have however categorically pleaded that the
said properties were purchased from and out of the
fund of the partnership firm.
19. As regards the property bearing CTS
No.93/32/HYG in Hosayellapur Area measuring 725.64
sq. mtrs. along with open site and RCC building
constructed thereon (B-2); it is contended that the
same was acquired by defendant No.2 out of his own
earning. However, no evidence regarding defendant
No.2 having independent source is forthcoming. In the
cross-examination of PW1, he has answered that this
was the property acquired by defendant No.2. This has
been taken to be an admission on the part of plaintiff
No.1. This contention cannot be countenanced as
admittedly defendants had no source of income other
than the income from the family business.
20. Thus, there is no dispute of the fact that
Pawadeppa Guddad was initially carrying on business of
jaggery and sweet oil and thereafter started
commission agent business and purchased the property
bearing CTS No.65/41 in the year 1961 which he had
contributed as his capital contribution to the business
of the firm. It has been categorically admitted by DW1
in his deposition that except the said business there
was no other source of income to the family.
21. Thus, the plaintiff has discharged the initial
burden of the existence of joint family nucleus out of
which the other properties had been acquired.
22. As regards, the claim of the plaintiff being the
partner of the partnership firm M/s. P.C. Guddad and
sons, it is to be noted that he was admitted along with
defendant Nos.2 and 3 as partners of the firm effective
from the year 1969. He continued as a partner of the
firm till he retired in the year 1978 on joining his
service. However, his name has been continuously
reflected in the assessment/income tax returns from
the year 1969 till date, as evidenced in the documents
produced by the plaintiff and admitted by the
defendants as per Exs.P59 to P103.
23. Though it is contended on behalf of the defendants
that they have calculated and settled the share of the
plaintiff in the partnership firm and had given the same
to him in the year 1979; they have not produced any
documents to that effect. However, admittedly the
name of the plaintiff being reflected as a partner and
an amount ranging around 1,78,000/- is being shown to
his credit in all the income tax returns.
24. Excerpts of the cross examination of DW1 (English
translation of Kannada deposition) are extracted
hereunder:
Recorded on 19.10.2011:
"It is true that M/s. P.C. Guddad and Sons
is the partnership firm. It is true that the said
firm is registered partnership firm. It was
registered for the first time in 1969. In 1969, my
father and his four sons started the said firm. It
is true that even before the commencement of
the firm my father was doing business. My elder
brother was not doing any business before
joining business with my father. ... I have the
partnership deed of 1969. The partnership firm
that started in 1969 continued till 1978. It is
true that my father and my other brothers did
not have any source of income other than
business of the firm.
My father was a partner in partnership firm
that started in 1979. All partners have 1/4th
share. .... I n 1979, after setting the accounts,
we have paid the due of the plaintiff. There are
no documents for such settlement of accounts. I t
was paid on brotherly faith. It is true that
income tax is paid from 1969 till date. It is also
true that the commercial tax is also paid. It is
true that balance sheet is submitted every year
along with income tax and commercial tax
returns. I t is true that income tax returns are
submitted in each partner's name.
Recorded on 07.01.2012:
... Exs.P49(a) and P49(b) are marked. It is
true that all their income tax is paid in the name
of the plaintiff from the expenses of the firm. We
have the documents for submitting the income
tax returns. It is true that income tax is paid on
the income of the firm payable to the plaintiff. In
1969, the plaintiff was a minor. It is true that
whenever a partner retires, his share of money is
accounted and determined. There is no document
from the plaintiff having retired from the firm. It
is true that the documents now shown to me are
the documents for having paid income tax
subsequent to 1978......
My father passed away in 1989. He was not
a partner of the firm at the time of his death. He
was partner only till 1978. My father was partner
till his death. After the death of my father, the
amount due and payable to him has been given
to my mother. T here may be documents/accounts
in this regard. I do not know, it is true that at
that no amount is paid by the plaintiff. No
consent or signature of the plaintiff is obtained
as he was not a partner. We have paid the
amount to our mother after valuation of the
property. No possibility to say as to how much
was paid. My mother passed away in 2002. I do
not know, whom did my mother give her share of
property...
... To the question, M/s. P.C. Guddad and
sons firm was originally established by your
father; witness answered, my father and brother
together established. I do not know the age of
my brother at the time. He was aged more than
18 years. ...
... It true that other than M/s. P.C. Guddad
and sons business there was no other business
or income. It is also true that defendant Nos.1
and 3 also had no other business or income. It is
incorrect to state that the property were
purchased from the income of the partnership
firm.
Recorded on 24.01.2012:
Joint family means my father and us means
children. There was no partition between our
father and us during his lifetime. Witness further
states, there was no properties for partition. ...
... at the time of my father's death, he has
1/4 t h share in M/s. P.C. Guddad and Sons.
... after the demise of my father, the
property which was in his name has been
registered in all his children. After the demise of
our father, accounts have been settled with
respect to his share in the firm. Upon a
question, at the time of settling the accounts you
have not asked the plaintiff, the witness replied,
since he had no share, asking of share does not
arise. There are documents with regard to the
accounts regarding my father's share. It is true
that there is no documents in this regard. It is
incorrect to suggest that I did not produce the
account documents with an intention that if the
same are produced before the Court the truth
will be known and share of the plaintiff needs to
be given. It is true that till the year 2005, in
the balance sheet we have shown the amount
payable to Somashekhar Guddad. ...
... I t is true that in the balance sheet for
the year 2005, Rs.1,78,000/- is shown as
payable to the plaintiff. Upon the question as to
why the said amount is shown, the witness
answered that after retirement from the
partnership he has not taken the said amount. ...
Upon a question that the godown was also
constructed from the income of the firms
business, witness replied that we have
constructed in our name from the funds of the
partnership. ...
... upon the question that though everyone
stayed separately the business was being run at
the same place, the witness replied that it was
being run in partnership. ...
... it is true that I constructed a house and
thereafter moved into the said house, I was not
paying rents when I was residing in the house of
the plaintiff. I was maintaining the said house. It
is incorrect to suggest that since the brothers
had not separated, there was no talk regarding
payment of rents. To the suggestion that the
joint family was separated only for food, witness
replied that isn't it ours a joint family.
... to the question the house was
constructed spending Rs.30 lakh, the witness
replied that Rs.15 to 20 lakhs must have been
spent and out of Rs.5 lakh from bank and the
remaining amount was from the partnership firm
and the loan taken on Life I nsurance Policy.
25. The aforesaid factual aspect of the matter and the
material evidence produced indicate that the business
was commenced and continued by Pawadeppa Guddad
and the accounts of the said partnership business have
not been settled even after the demise of Pawadeppa
Guddad till date. Though it is claimed that the share of
Pawadeppa Guddad was accounted and paid to his wife
i.e., mother of the plaintiff and defendants, no evidence
is produced in this regard.
26. It is contended on behalf of the defendants at
paragraph Nos.24 and 25 of the written statement that
the Pawadeppa Guddad who had engaged himself in
jaggery and sweet oil business and closed the same in
the year 1950-51, at which time, defendant No.1 was
aged about 7 years, that the said Pawadeppa Guddad
started business of commission agency in the rented
premises and in the year 1961 he had purchased open
site from the Dharwad Municipality and defendant No.1
joined his father in commission agency business and
assisted his father and gained experience, that by
about the year 1965-66, defendant No.1 was grown up
and decided to carry on commission agency business as
a partner, accordingly in the year 1966, they had
started partnership business, that upon the contribution
of the property bearing CTS No.65/41 by Pawadeppa
Guddad to the partnership firm, he became entitled to
only for ½ share, while the defendant No.1 become
entitled to only for ½ share of the property.
27. The aforesaid contention of the defendants cannot
be accepted to the extent of defendant No.1 becoming
equal partner with that of his father even as in the year
1966. From the aforesaid pleadings in the written
statement, it is clear that the Pawadeppa Guddad had
started the business and had acquired the property at
CTS No.65/41 in the year 1961, at which time, the
defendant No.1 was still a minor. The fact that
Pawadepa Guddad had earlier sold a portion of CTS
No.593 to Gangappa on 02.04.1938 and repurchased
the same on 22.04.1942 within four years and again
purchased property in CTS No.65/41 in 1961, indicate
that he must have had good business and income
therefrom. There is no evidence regarding the so called
loss of business which was purportedly improved by
defendant No.1 as sought to be made out. It is normal,
as in the instant case, that in a joint family business,
elder son to join and assist the business set up by the
father. That by itself cannot be interpreted to convey
that the son becoming independent and equal partner
with that of the father, more so, when the business had
been set up by the father, who had acquired the
property and had put the same into the partnership
firm in the nature of utilizing the said land for the
purpose of running the business for the benefit of
entire family, there has been no contribution of any
nature whatsoever by the defendant No.1. Such a plea
is not even available as the defendant No.1 who was
minor at that time. Subsequent constitution of the
partnership firm with defendant No.1 alone under the
circumstance, would not give any credence to the claim
of defendant No.1 to have become the partner equal to
that of the father. In any event the partnership firm
admittedly reconstituted with the remaining three sons
joining the business including the plaintiff with equal
entitlement in the business, suit schedule properties as
narrated above have been acquired subsequent to the
demise of Pawadeppa Guddad admittedly from and out
of the source of the business as specifically narrated by
the defendants in paragraph Nos.31, 32 and 34 of the
written statement.
28. CONCLUSION:
(a) All members of the family stayed with the
Pawadeppa Guddad under one roof in their old house in
CTS No.593. Worked and earned in the business set up
by him under the name and style of M/s. P.C. Guddad
and Sons for the benefit of the entire family. All the
four sons joined the said family business. Plaintiff
moved out of the family due to his joining the service.
Defendant No.2 stated to have stayed separate on and
from the year 1996. Defendant Nos.1 and 3 constructed
their homes during 2005. All these events prior to and
subsequent to demise of Pawadeppa Guddad i.e., in the
year 1989. The business which was started by said
Pawadeppa Guddad continued even after his demise. All
the sons including the plaintiff are shown as the
partners of the business having specific capital share in
the firm as reflected in the income tax returns being
filed in the name of the firm by the defendants. There
has been no partition either during the life time of
Pawadeppa Guddad or after his demise.
(b) In view of the aforesaid settled legal position and
under the facts and circumstances of the case, it is
clear that the family of plaintiff and defendants is a
joint family, having joint family business and joint
family properties and assets that the suit properties
were acquired from and out of the source of the joint
family partnership business established and run by the
father of the plaintiff. Therefore, it cannot be accepted
that the suit properties were not joint family properties
only to deny the claim of the plaintiff. Thus, we are of
the considered view that the suit properties were joint
family properties acquired from and out of the joint
family funds and the same are amenable for partition.
(c) Further in view of the plaintiff having executed
registered deed of relinquishment along with defendant
No.2 as per Ex.P10, relinquishing his share, right, title
and interest in the portion of the land bearing CTS
No.593/1/MN in favour of defendant Nos. 1 and 3, he is
not entitled for any share in the said property.
(d) As regards the claim of the plaintiff in respect of
the cash investments, gold ornaments and household
furnitures, no satisfactory evidence is forthcoming
justifying the claim of the plaintiff, as such, the same
cannot be considered.
(e) The plaintiff and defendant Nos.1 to 4 are held
entitled for 1/5 t h share in the suit schedule properties
available for partition.
(f) We having held that the partnership business of
M/s. P.C. Guddad and sons belonging to the joint family
and in view of the admission made by the defendants
that the share of the plaintiff in a sum of Rs.1,78,000/-
has not been given and the same is reserved,
earmarked and set apart from the year 1979 and also in
view of the name of the plaintiff being reflected in the
assessment/income tax returns as per Exs.P59 to P103
and in view of share of Pawadeppa in the business not
having been settled, it is just and proper that the
defendants be directed to render the account of the
firm on and from the year 1979 till date.
(g) The trial Court has not adverted to any of these
aspects of the matter in the impugned judgment and
decree while dismissing the suit. Therefore, the same is
unsustaianble.
29. For the aforesaid analysis, we pass the following:
ORDER
(i) The appeal filed by the appellant/plaintiff is
hereby allowed;
(ii) The Judgment and Decree dated 30 t h November
2013, passed in O.S. No.248/2006 by the Principal
Senior Civil Judge and CJM, Dharwad is hereby set
aside;
(iii) The plaintiff is held entitled for 1/5 t h share in item
Nos. (A-1), (A-2), (B-2), (C-1), (C-2) (C-3),
(C-4), (E-1) and (F) of the suit schedule
properties; described in paragraph 2 of the plaint;
(iv) There shall be an enquiry under Order 20 Rules
12(ba), 17 and 18(2) of the CPC with regard to
mesne profit, accounts of the partnership business
of M/s.P.C. Guddad and sons; and with regard to
determination/division and allotment of the share
of the plaintiff.
(v) Draw preliminary decree accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
bnv* & Vnp*
